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HIV Drug, Preventative Services Struck Down by Texas Judge

Analysis  |  By Jay Asser  
   September 08, 2022

Judge Reed O'Connor deemed the services unconstitutional, drawing heavy criticism from patient advocacy groups.

A key piece of the Affordable Care Act (ACA) requiring employers to cover an HIV prevention drug and other preventive services is in jeopardy after a federal judge ruled against it for violating religious freedom.

Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled in favor of Steven Hotze, owner of Braidwood Management, who claimed the ACA mandate violates the Religious Freedom Restoration Act.

Hotze specifically took issue with being forced to buy health insurance for his employees to cover an HIV prevention drug, preexposure prophylaxis (PrEP), arguing it "facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman," the ruling stated.

O'Connor wrote that "Braidwood has shown that the PrEP mandate substantially burdens its religious exercise."

Additionally, O'Connor found that the U.S. Preventive Services Task Force violates the Constitution's Appointments Clause, which deems how public officials are appointed, because of the scope of the task force's authority.

O'Connor previously ruled that the entire ACA was unconstitutional in 2018, arguing that the law was invalid because Congress zeroed out the penalty tied to its individual mandate. The decision was flipped by the Supreme Court, which upheld the ACA by a 7-2 vote in 2021 in the midst of the COVID-19 pandemic, allowing millions to retain their insurance coverage.

Patient advocacy groups have spoken out against O'Connor's most recent ruling, voicing their displeasure and warning of the dangers of the decision.

"The free preventive care guaranteed by the ACA has become a bedrock of our health care system, benefiting patients with all types of insurance, including those insured by their employer," Protect Our Care chair Leslie Dach said in a statement. "The consequences of this ruling cannot be understated and it is essential that Judge O'Connor stay the effects of his order while this disastrous decision is appealed."

Jay Asser is the contributing editor for strategy at HealthLeaders. 

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